State v. Nesmith

• Decision Date: 16 June 1931
• Citation: 300 P. 356,136 Or. 593
• Parties: STATE v. NESMITH.
• Court: Oregon Supreme Court

300 P. 356

136 Or. 593

STATE v. NESMITH.

Supreme Court of Oregon

June 16, 1931

Department 2.

Appeal from Circuit Court, Coos County; James T. Brand, Judge.

Lynn Nesmith was convicted of an assault with intent to commit rape, and he appeals.

Affirmed.

The defendant has appealed to this court from a judgment convicting him of the crime of an assault with intent to commit rape upon the body of one Frances Lee, a female child under the age of sixteen years. On his appeal, he challenges the sufficiency of the indictment on three grounds, viz First, that it fails to allege the age of the defendant second, that it fails to allege that the person upon whom the averred assault was made was under the age of sixteen years and, third, that it fails to allege that that person was unmarried.

The statute defines the crime of rape in the following language "If any person over the age of sixteen years shall carnally know any female child under the age of sixteen years, or any person shall forcibly ravish any female, such person shall be deemed guilty of rape, and upon conviction thereof shall be punished. * * *" Or. Code 1930, § 14-220.

The indictment returned in this case, in preferring a criminal charge against the defendant, alleged that: "The said Lynn Nesmith, on the second day of July, 1930, in the County of Coos and State of Oregon then and there being, did then and there unlawfully and feloniously assault one Frances Lee, a female child of the age of fifteen years, with intent then and there to have sexual intercourse and carnally know her, the said Frances Lee. * * *"

Denton G. Burdick and P.J. Gallagher, both of Portland, for appellant.

William E. Walsh, Dist. Atty., of Marshfield (J. B. Bedingfield, of Marshfield, on the brief), for the State.

BROWN, J.

The defendant asserts that the indictment does not state facts sufficient to constitute a crime.

It is a general rule that an indictment is sufficient when it alleges acts constituting the crime charged in the words of the statute defining it. This is essentially true when the statute contains all the elements of the offense. State v. Bailey, 115 Or. 428, 236 P. 1053. Under Oregon Code 1930, section 13-714, an indictment is sufficient when it can be understood therefrom-- "1. That it is entitled in a court having authority to receive it; * * *

"2. That it was found by a grand jury of the county in which the court was held;

"3. That the defendant is named; * * *

"4. That the crime was committed within the jurisdiction of the court; * * *

"5. That the crime was committed at some time prior to the finding of the indictment, and within the time limited by law for the commencement of an action therefor;

"6. That the act or omission charged as the crime is clearly and distinctly set forth; * * *

"7. That the act or omission charged as the crime is stated with such a degree of certainty as to enable the court to pronounce judgment, upon a conviction, according to the right of the case."

It is manifest that, when an indictment complies with the foregoing provisions of our Code, the constitutional guaranty of the defendant "to demand the nature and cause of the accusation against him" (Const. art. 1, § 11) has been fully met.

To the first objection, that the indictment does not state the age of the defendant, we answer: For the last thirty years it has been a rule of pleading in this state that it is unnecessary to allege the age of the defendant in an indictment under a statute like section 14-220, Or. Code, 1930. We refer to the leading case of State v. Knighten, 39 Or. 63, 64 P. 866, 87 Am. St. Rep. 647. The opinion in that case was rendered by Mr. Chief Justice R. S. Bean, and is instructive and illuminating. In speaking for the court in that case, the learned justice wrote, among other things: "At common law, a boy under 14 years of age was conclusively presumed to be physically incapable of committing the crime of rape, but it was never held that it was necessary to allege the age of the defendant in an indictment for that crime. 16 Am. & Eng. Enc. Law [1st Ed.] 315; Commonwealth v. Scannel, 11 Cush. [ Mass.] 547; Sutton v. People, 145 Ill. 279, 34 N.E. 420; State v. Ward, 35 Minn. 182, 28 N.W. 192. Nor is it necessary under the statute. If the defendant was below the requisite age, it is a matter of defense."

In addition to the foregoing adjudications in support of his holding, the justice cites Bishop, Statutory Crimes (2d Ed.) § 482. This opinion also cites with approval and quotes from the case of People v. Ah Yek, 29 Cal. 575, where it was held that an indictment silent as to the age of the defendant was good, and where Mr. Justice Sawyer, speaking for the California court, said: "It does not appear upon the face of the indictment that defendant was under fourteen years of age, and we see no better reason for averring that he is over fourteen than in any other criminal case for averring that the party charged is of such an age as to render him capable in law of committing the crime. His capacity to commit the crime is as much an element in the crime in one case as in the other."

So too, under a statute like our own, the Supreme Court of Vermont, in State v. Sullivan, 68 Vt. 540...